Whether Magistrate is required to give reasons for summoning accused in cases instituted on police report?

In summoning the accused, it is not necessary for the
Magistrate to examine the merits and demerits of the case and
whether the materials collected is adequate for supporting the
conviction. The court is not required to evaluate the evidence and
its merits. The standard to be adopted for summoning the
accused under Section 204 Cr.P.C. is not the same at the time of
framing the charge. For issuance of summons under Section 204
Cr.P.C., the expression used is “there is sufficient ground for
proceeding…..”; whereas for framing the charges, the expression
used in Sections 240 and 246 IPC is “there is ground for presuming

that the accused has committed an offence….. ”. At the stage of
taking cognizance of the offence based upon a police report and
for issuance of summons under Section 204 Cr.P.C., detailed
enquiry regarding the merits and demerits of the case is not
required. The fact that after investigation of the case, the police
has filed charge sheet along with the materials thereon may be
considered as sufficient ground for proceeding for issuance of
summons under Section 204 Cr.P.C.
22. In so far as taking cognizance based on the police report, the
Magistrate has the advantage of the charge sheet, statement of
witnesses and other evidence collected by the police during the
investigation. Investigating Officer/SHO collects the necessary
evidence during the investigation conducted in compliance with
the provisions of the Criminal Procedure Code and in accordance
with the rules of investigation. Evidence and materials so collected
are sifted at the level of the Investigating Officer and thereafter,
charge sheet was filed. In appropriate cases, opinion of the Public
Prosecutor is also obtained before filing the charge sheet. The
court thus has the advantage of the police report along with the
materials placed before it by the police. Under Section 190 (1)(b)
Cr.P.C., where the Magistrate has taken cognizance of an offence
upon a police report and the Magistrate is satisfied that there is
sufficient ground for proceeding, the Magistrate directs issuance of
process. In case of taking cognizance of an offence based upon

the police report, the Magistrate is not required to record reasons
for issuing the process. In cases instituted on a police report, the
Magistrate is only required to pass an order issuing summons to
the accused. Such an order of issuing summons to the accused is
based upon subject to satisfaction of the Magistrate considering
the police report and other documents and satisfying himself that
there is sufficient ground for proceeding against the accused. In a
case based upon the police report, at the stage of issuing the
summons to the accused, the Magistrate is not required to record
any reason. In case, if the charge sheet is barred by law or where
there is lack of jurisdiction or when the charge sheet is rejected or
not taken on file, then the Magistrate is required to record his
reasons for rejection of the charge sheet and for not taking on file.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 224 OF 2019

STATE OF GUJARAT Vs AFROZ MOHAMMED HASANFATTA 

R. BANUMATHI, J.
Dated:February 05, 2019.

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Basic concepts of CPC Part 3 definitions

Order S 2(14) of CPC

An order has been defined as the formal expression of any decision of a civil court which is not a decree.

Difference between decree and order.

Both a decree and an order are adjudication by a civil court and both relate to matters in controversy. However the following are six points of distinction between the two:

1) A decree is an adjudication which conclusively determines the rights of the parties with regard to any or all matters in controversy;an order on the other hand may or may not finally determine the rights of parties.

2) A decree can only originate from a suit that is proceeding commenced by a plaint. An order may originate from a suit as well as from any other proceeding commenced by an application.

3)Except in certain suits where two decrees(one preliminary and the other final) are passed, in every suit there is only one decree, whereas many orders can be passed in a single suit.

4) A first appeal always lies from a decree. However no appeal lies from an order unless it is appealable order.

5) While appealability is the rule and non-appealability is the exception in the case of a decree,in the case of an order, it is just the reverse.

6) While in the case of a decree, an aggrieved person has the right to second appeal,in an appealable order,he does not have such a right.

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Whether court should issue summon compelling presence of deponent for cross examination whose affidavit is filed during proceeding for interim injunction?

 It is also clear from the provisions of Order 19, Rule 2, C.P.C. that the court may order the attendance of the deponent for the cross-examination. Order 19 of the Code of Civil Procedure contains no provision empowering the court to issue process to enforce the attendance of the deponents. If the party fails to produce the deponents of the affidavits filed by the for cross-examination despite order of the court, affidavit of the deponent failing to attend the court has to be ignored. When a party is successful to procure the affidavit, it can well bring the deponent to the court for his cross-examination. His insistence for the issue of process to complete his attendance may to indicate that he is interested in delaying the disposal of the case.

Rajasthan High Court

Chotu Khan vs Abdul Karim on 12 March, 1991

Equivalent citations: AIR 1991 Raj 119, 1991 (2) WLC 219, 1991 (2) WLN 140

Bench: M C Jain

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